R v Bimahendali

R v Bimahendali - [2006] NSWCCA 130 - NSWCCA 2006 case summary — Zoe

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1 JAMES, J: I agree with Hall, J. 2 SIMPSON, J: I agree with Hall, J. 3 HALL, J: On 6 October 2005, the Director of Public Prosecutions, pursuant to s.5D of the Criminal Appeal Act 1912 appealed the sentences pronounced by the District Court of New South Wales, Sydney District, with respect to the respondent on 9 September 2005. 4 The respondent pleaded guilty to a charge of supplying a commercial quantity of a prohibited drug, namely, a commercial quantity of ecstasy, the offence having been committed on 26 October 2004. 5 The charge pursuant to s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carried a maximum penalty for the offence of imprisonment for 20 years and/or a fine of 3,500 penalty units ($385,000). 6 The history of the proceedings is set out in the Crown's written submissions which are reproduced below. 7 The respondent was committed for sentence to the District Court on 18 May 2005 from the Burwood Local Court. 8 On 3 June 2005, the respondent's matter was mentioned before the Chief Judge, and the matter was fixed for sentence on 22 July 2005. 9 On 22 July 2005, evidence was given in closed court of assistance given by the respondent to police (an affidavit of assistance was tendered and marked as Exhibit SC). The respondent also gave evidence and submissions were made by the Crown and the defence and the matter was then stood over to 26 August 2005. 10 On 26 August 2005, the sentencing judge adjourned the sentencing hearing to 9 September 2005. 11 On 9 September 2005, the respondent was sentenced to a term of imprisonment for two years with a non-parole period of 18 months. However, the sentence was suspended pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) conditionally upon the respondent entering into a bond on the following terms:- "• To appear before the Court if called upon to do so at any time during the term of the bond; • to be of good behaviour; • to reside at a specified address and to advise the Clerk of the Court by pre-paid registered post of any change of residential address during the term of the bond; • to be subject to the direction and supervision of the Probation & Parole Service during the term of the bond; and • to report to the Officer-in-Charge of the Burwood Office of the Probation & Parole Service within three days." 12 The respondent had been arrested on the date of the offence, 26 October 2004, and was held in custody for approximately four months before he was released to bail on 7 March 2005.

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Grounds of appeal 14 There is only one ground of appeal in the notice of appeal, namely, that the sentence was manifestly inadequate. 15 It has been submitted on behalf of the Crown that the objective seriousness of the offence was so great that the sentence handed down did not reflect that objective seriousness. 16 The Crown pointed to the fact that the offence carries a penalty of 20 years, the amount involved being not less than the commercial quantity, which is 0.125 kilograms, and the amount involved being 160 grams. 17 Whilst the Crown has observed that this Court has on occasions treated the drug, the subject of the charges in this appeal, as a mid-range drug (see Regina v. Bimahendali [1999] NSWCCA 409 at [14]), reliance was placed upon the observations of Wood CJ. at CL. in that case at [17]:- "Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the traffickable or commercial quantity prescribed …" 18 The Crown also referred to observations in Regina v. Peel (1971) 1 NSWLR 247 at 252 wherein it was stated:- "In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug." 19 Similarly, in Regina v. Dang [2005] NSWCCA 430, Howie, J., with whom Studdert, and Whealy, JJ. agreed, stated:- "… this Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather, the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: Regina v. Nai Poon (2003) 56 NSWLR 284; Regina v. Neale (2004) 138 A. Crim. R. 493." 20 The Crown also referred to Regina v. Harmouche [2005] NSWCCA 398 at [37]. The Crown submitted that the seriousness of the respondent's offending, must not only be judged by the statutory criteria, but also by the other purposes which sentencing is intended to serve referring specifically to the provisions of s.3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 21 The Crown contended that the sentencing judge failed to give sufficient weight to:-

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(b) The respondent's evidence as to his apprehension or fears was not shown to be based upon a clear direct threat to him but on certain information indirectly conveyed to him. 28 The sentencing judge then stated (at pp.4 to 5):- "… those considerations of mitigation which I have referred to operate in this case. But for the assistance that he offered the police, the sentence would have been significantly harsher. In the circumstances, it seems to me that it is appropriate, noting the assistance and noting the term already spent in prison, for me to sentence this man to a term of imprisonment of two years but to suspend it. Accordingly, I sentence as follows: the offender is convicted. He is sentenced to a term of imprisonment of two years. I set a non-parole period of 18 months. Under s.12 of the Crimes (Sentencing Procedure) Act 1999, I order that execution of the sentence be suspended." 29 At the conclusion of his sentencing remarks, when asked, the sentencing judge indicated that he had applied a 50% discount for the plea of guilty and assistance (indicating that he otherwise would have imposed a sentence of four years). 30 The Crown has correctly emphasised that the subjective features of a particular offender must not be allowed to overshadow the objective seriousness of the offence under consideration: Regina v. Dodd (1991) 57 A. Crim. R. 349 at 354; Regina v. Rushby (1977) 1 NSWLR 594; Regina v. Myers (NSWCCA, unreported 13 February 1990). 31 The Crown submitted that in dealing with the supply of not less than the commercial quantity of a prohibited drug, not only is a full time custodial sentence required, but that a substantial full time custodial sentence should be imposed. The submission referred to the need for the courts, given the evils of the drug trade, to take a very firm stand against it, citing Regina v. Collins [2000] NSWCCA 236 at [15]; Regina v. O'Brien & Mammone (NSWCCA, unreported 23 August 1989); Regina v. Wong & Ng (1988) 39 A. Crim. R. 1 at 3. 32 Finally, in relation to the order suspending the sentence imposed, the Crown submitted as follows:- "31. The Crown further submits that a suspended sentence like a sentence of periodic detention, contains a strong element of leniency, and is outwardly less severe in denunciation of criminality and is not normally appropriate in cases involving the supply of illegal drugs: Regina v. Day (1998) 100 A. Crim. R. 275; Regina v. Niga (NSWCCA, unreported 13 April 1984); Regina v. Hallacoglu (1992) 63 A. Crim. R. 287 at 294 and, in particular, it is not appropriate in a case involving the supply of not less than the commercial quantity. 32. With respect to the 50% discount, the Crown accepts that there is no fixed tariff for the discount to be applied for assistance to the authorities: see Cartwright (1989) 17 NSWLR 243, 255G; Regina v. Gallagher (1991) 23 NSWLR 220; Chu (NSWCCA, unreported 16 October 1998 at 6). In Chu , Spigelman, CJ. said at 6:- 'On some occasions the 50% discount which was allowed in Cartwright itself has been treated as if it was a tariff … However it should not be so regarded. The discount is over a significant range, varying with the particular circumstances of the case and the assistance actually provided.' 33. The Crown submits, however, that the discount to be applied for the guilty plea and assistance is required to take into account the principle of proportionality in sentencing. The discounted sentence for assistance to the authorities should not be unreasonably disproportionate to the nature and circumstances of the offence: s.23(3) of the Crimes (Sentencing Procedure) Act 1999." 33 It was submitted that, where the maximum penalty is 20 years and where the standard non-parole period is 10 years and the sentencing judge uses four years as a starting point and then discounts it by 50% for the plea and assistance and then imposes a suspended sentence, the sentencing judge has demonstrably fallen into error.

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Assistance to the authorities 40 On the hearing of the appeal, the Crown's written submissions dated 9 September 2005 before the sentencing judge were tendered and marked as Exhibit A in these proceedings. At p.8 of the transcript of 9 September 2005, the Crown indicated that it accepted "there was quite substantial assistance given". On this appeal, however, the Crown submitted that there was no indication in the transcript that the Crown's representative had seen the affidavit. The Crown's abovementioned concession had apparently come after an earlier indication that the assistance was of a limited kind. Accordingly, there was a shifting of ground by the Crown at the sentencing hearing. 41 In the oral submissions on behalf of the Crown in this appeal, it was submitted that a reading of the confidential affidavit establishes that the assistance was in fact of a limited kind. The Crown further submitted that there were no "exceptional circumstances" in the case which would have justified the suspended sentence. The Crown submitted that the starting point of four years was itself manifestly inadequate. 42 The transcript of the evidence taken in closed court on 22 July 2005 confirms that, although the respondent was willing to assist police, the fact that he failed in tasks set for him, was not attributable to a lack of willingness on his part, but was due to other circumstances. 43 In oral submissions on behalf of the respondent, it was submitted that the assistance given by the respondent was, in fact, substantial and reliance was placed upon the concession in this respect made by the Crown at the sentencing hearing following evidence given by the investigating police officer. 44 Although the Crown ultimately conceded at the sentencing hearing that the assistance given was substantial, in fact, the police evidence was to the effect that the assistance was only of limited use. Furthermore, whilst in Cartwright (supra) Hunt and Badgery-Parker, JJ. stated that the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out, in fact, to have been effective. The law has changed since that decision was given. Their Honours in that case (at p.253) stated that the information given by an offender must be such as could significantly assist the authorities, emphasising that the information must, of course, be true. What was relevant was the potential of the information to assist the authorities as comprehended by the offender himself. 45 The law as stated in Cartwright (supra) has been Affected by s.23 of the Crimes (Sentencing Procedure) Act. Whilst s.23(2)(b) requires the Court to have regard to the "significance and usefulness" of the assistance given or offered, it is not the case that simply because the assistance is of no value to the authorities that it must be disregarded: Regina v. Tooth [2001] NSWCCA 407 per Howie, J. at [20] (Grove, J. agreeing) citing Regina v. Yenice (1994) 72 A. Crim. R. 234 at 239, Regina v. Ward (NSWCCA, unreported 29 May 1995). 46 However, the provisions of s.23(2)(b) require that in deciding whether to impose a lesser sentence for an offence and the nature and extent of the penalty it imposes, a court must consider, inter alia, the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered; see also s.23(2)(c), (d) and (e). 47 Counsel for the respondent indicated on this matter that the limited use to which the respondent's assistance was put was "… brought about by circumstances which were out of the control of this respondent, notwithstanding his endeavours …" (p.10) and emphasising the extent of his co-operation with the authorities. 48 In relation to the respondent's criminality, it was submitted on behalf of the respondent:-

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Assistance provided to law enforcement authorities - relevant principles 51 In Braithwaite v. Regina [2005] NSWCCA 451 (in which the applicant had been charged under s.25(1) of the Drug Misuse and Trafficking Act 1985), Hodgson, JA., with whom McClellan, CJ. at CL. and I agreed, stated, at [29], in relation to the question as to whether the sentences in that case should be suspended under s.12 of the Crimes (Sentencing Procedure) Act 1999:- "… Although, as I have said, I do not accept that the sentences cannot be suspended unless the offences fall towards the lower end of the scale or unless there are exceptional circumstances, I do consider that, in cases such as this of supply of drugs, a strong case needs to be made out to justify suspending the sentence." 52 Hodgson, JA. concluded, on the facts of that case, (the first charge related to the supply of methylamphetamine with a mixed powder involving a total weight of 20.89 grams, and a second charge involved MDMA or ecstasy, involving a total weight of 17.78 grams, the indictable quantity being 1.25 grams), that, taking into account all circumstances, it was not appropriate to suspend the sentences for what were termed "serious drug offences". 53 The salutary nature of a suspended sentence, was, however, recognised by Howie, J. (with whom Hodgson, JA. and Levine, J. agreed) in his review of the sentencing options under the Crimes (Sentencing Procedure) Act 1999 in Regina v. Zamagias [2002] NSWCCA 17 at 22. In that case at [31] his Honour stated:- "A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended … That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order, even though it may appear on its face to be less punitive." 54 In this appeal, the focus of criticism was not upon the 50% discount allowed for the early plea and assistance. The focus was on whether the sentence was manifestly inadequate in failing to give due consideration to the seriousness of the offence and upon the fact that the sentence imposed was suspended: see Regina v. JCE (2000) 120 A. Crim. R. 18 at [25] and Regina v. Foster [2001] NSWCCA 215 at [36] 55 In evaluating these issues, the Court must, of course, recognise the limitations upon it arising from the principles that govern the determination of a Crown appeal against sentence and the exercise of the discretion vested in this Court. In particular, as observed by Howie, J. in Zamagias (supra) at [20], the Court must have regard to the width of the discretionary judgment of the sentencing court and the limitations upon the power to review that judgment. As his Honour emphasised, the Court can interfere only if it is necessary to correct error and then only in an appropriate case, bearing in mind that a Crown appeal should be rarely successful where no particular error can be identified. 56 The determination of the term of imprisonment to be imposed was one to be made without regard to whether the sentence would be immediately served or the manner in which it is to be served: Zamagias at [26]. In determining the availability of an alternative to full time custody, the court exercises a discretion but the discretion must be exercised according to established sentencing principles: Zamagias at [29]. 57 In determining whether the sentence was manifestly inadequate by reason of the order suspending it, the relevant principles, as I understand them, include the following:-

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(k) In determining whether a suspended sentence is an adequate form of punishment and is one which sufficiently reflects specific and general deterrence, it is necessary to have regard to the sentencing judge's reasons for suspending the sentence and, in particular, whether the reasons given were sufficient to activate the sentencing discretion in that respect. 58 The sentencing judge dealt with the question of assistance at p.2 of the remarks on sentence and there had regard to the provisions of s.23 of the Crimes (Sentencing Procedure) Act 1999. Whilst specific emphasis was given to certain provisions of s.23(2), there was no reference in particular to s.23(2)(b) (the significance and usefulness of the offender's assistance to the authorities). However, it is clear that the sentencing judge gave consideration to matters which were relevant thereto. Appropriate regard was also given to both the police evidence and to the evidence of Reverend Thomas Oakley. At p.4 of the remarks on sentence, the sentencing judge stated he was satisfied that the respondent had been the subject of death threats and that if he went back to prison "… he will be at serious risk and will be required to be in custody in close protection …" (p.4). 59 Whilst the remarks on sentence do not, in terms, explicitly identify all of the particular reasons for the decision to suspend the sentence, one may discern from them that it was the assistance provided to the authorities and the time spent in custody which were the influencing factors (at p.5):- "In the circumstances, it seems to me that it is appropriate, noting the assistance and noting the term already spent in prison, for me to sentence this man to a term of imprisonment of two years but to suspend it … " 60 The "circumstances" referred to here I consider is sufficient to indicate that the sentencing judge also had in mind the matters referred to by him in the immediately preceding paragraph at the foot of p.4 of the remarks on sentence, namely:-

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